EXHIBIT 10.1
UMPQUA HOLDINGS CORPORATION
EMPLOYMENT AGREEMENT
FOR
XXXXXXX XXXX
DATED AS OF MAY 12, 2005
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is by and between Umpqua
Holdings Corporation ("Umpqua") and Xxxxxxx Xxxx ("Officer"), effective as of
May 12, 2005.
1 PURPOSE AND DURATION OF AGREEMENT. The purpose of this Agreement is to set
forth the terms of Officer's employment with Umpqua and to provide Officer
benefits in certain circumstances where Officer's employment is terminated or a
Change in Control (defined below) occurs. This Agreement, including the
severance provisions governed by ERISA, shall expire five (5) years from the
date first written above.
2 EMPLOYMENT. Umpqua, either directly or through one of its wholly owned
subsidiaries, employs the Officer and Officer accepts that employment on the
terms and conditions contained in this Agreement. Officer's employment will
commence on May 12, 2005 (the "Commencement Date").
3 NO TERM OF EMPLOYMENT. Notwithstanding the term of this Agreement, Umpqua may
terminate Officer's employment at any time for any lawful reason or for no
reason at all, subject to the provisions of this Agreement.
4 DUTIES; POSITION.
4.1 Position. Officer shall be employed as President of Umpqua Bank,
California Region, and will perform such duties as may be designated by Umpqua's
Board of Directors (the "Board") or Umpqua's President or Chief Executive
Officer to whom Officer will directly report (the "Supervisor").
4.2 Obligations of Officer.
(a) Officer agrees that to the best of Officer's ability and
experience, Officer will at all times loyally and conscientiously perform
all of the duties and obligations required of Officer pursuant to the
express and implicit terms of this Agreement and as directed by the Board
or the Supervisor.
(b) Officer shall devote Officer's entire working time, attention
and efforts to Umpqua's business and affairs, shall faithfully and
diligently serve Umpqua's interests and shall not engage in any business
or employment activity that is not on Umpqua's behalf (whether or not
pursued for gain or profit) except for (a) activities approved in writing
in advance by the Board and (b) passive investments that do not involve
Officer providing any advice or services to the businesses in which the
investments are made.
5 COMPENSATION.
5.1 Base Compensation. For services performed under this Agreement,
Officer shall be entitled to $25,000 per month ($300,000 on annualized basis)
("Base Salary"), which Umpqua may increase in its sole discretion, as well as
perquisites provided to Umpqua's officers. Officer shall be entitled to
participate, under the terms of the respective plans, group health insurance,
long-term disability insurance, 401(k) plan, as well as such other compensation
or benefits as approved by the Board. Officer is entitled to four weeks vacation
per year.
5.2 Incentive Compensation. Officer is eligible to participate in
the 2005 Executive Incentive Compensation Plan, under which Officer will have an
opportunity to earn incentive compensation targeted at 50% of Officer's base
salary. For 2005, Officer shall be guaranteed a minimum incentive payment of 50%
of his 2005 base salary. In subsequent years, Officers will be eligible to
participate in the incentive compensation plans, as approved by the Board.
5.3 Other Perquisites. Officer's monthly dues for the Montreux
Country Club, will be reimbursed through the monthly expense report pursuant to
Umpqua's reimbursement policy. Officer will receive $600 per month as a car
allowance. Officer will also have access to a vehicle owned by Umpqua, the
gasoline expenses and maintenance expenses for which will be reimbursed by
Umpqua.
5.4 Stock Options. Subject to the Board's approval, as of the
Commencement Date, Officer will be granted a non-qualified stock option to
purchase 50,000 shares of Umpqua's common stock, pursuant to the 2003 Stock
Incentive Plan. The option will vest 20% per year over five years. Subsequent
stock option grants will be at the Board's discretion.
5.5 Deferred Compensation. Officer will be entitled to participate
in a deferred compensation plan, under which Officer may voluntarily defer
compensation.
5.6 Sign-On Bonus. As a sign-on bonus, the Officer will receive a
bonus of $30,000 that will be paid within 30 days of the Commencement Date.
5.7 Relocation Expenses.
(a) Umpqua will reimburse Officer for two (2) house-hunting
trips, up to three (3) days, for the purpose of finding a new residence in the
Roseville/Sacramento area. Eligible expenses for reimbursement include
economical airfare or car mileage, car rental (if needed), lodging and meals.
(b) Umpqua will reimburse Officer for moving expenses in an
amount not to exceed the cost estimate provided by Umpqua's relocation
contractor. Umpqua will reimburse Officer for the cost of driving two
automobiles, at the current approved mileage rate.
(c) Umpqua will reimburse Officer for out of pocket living
expenses incurred between the Commencement Date and June 30, 2005, as well as
for transportation expenses incurred while traveling from Danville, California
to the Roseville between the Commencement Date and June 30, 2005.
6 TERMINATION.Officer's employment may be terminated before the expiration of
this Agreement as described in this Section, in which event Officer's
compensation and benefits shall terminate except as otherwise provided in this
Agreement.
6.1 For Cause. Upon Umpqua's termination of Officer's employment for
Cause (as defined in Section 7.1 below) ("Termination For Cause").
6.2 Without Cause. Upon Umpqua's termination of Officer's employment
without Cause, with or without notice, at any time in Umpqua's sole discretion,
for any reason (other than for Cause, death, or Disability) or for no reason
("Termination Without Cause"). A Change in Control does not in itself constitute
Termination Without Cause.
6.3 For Good Reason. Upon Officer's termination of the employment
for Good Reason (as defined in Section 7.2 below) ("Termination For Good
Reason").
6.4 Death or Disability. Upon Officer's death or Disability (as
defined in Section 7.3 below).
6.5 Resignation. Upon Officer's voluntary resignation in writing,
which shall be given to Umpqua at least 60 days prior to the effective date of
such resignation ("Resignation"); provided, Resignation shall not be permitted
if an event has occurred that would give rise to Termination for Cause.
7 DEFINITIONS.
7.1 Cause. For the purposes of this Agreement, "Cause" for Officer's
termination will exist upon the occurrence of one or more of the following
events:
(a) Dishonest or fraudulent conduct by Officer with respect to the
performance of Officer's duties with Umpqua;
(b) Conduct by Officer that materially discredits Umpqua or any of
its subsidiaries or is materially detrimental to the reputation of Umpqua
or any of its subsidiaries, including but not limited to conviction or a
plea of nolo contendere of Officer of a felony or crime involving moral
turpitude;
(c) Officer's willful misconduct or gross negligence in performance
of Officer's duties under this Agreement, including but not limited to
Officer's refusal to comply in any material respect with the legal
directives of the Board or the Supervisor, if such misconduct or
negligence has not been remedied or is not being remedied to the Board's
reasonable satisfaction within thirty (30) days after written notice,
including a detailed description of the misconduct or negligence, has been
delivered by the Board to Officer;
(d) An order or directive from a state or federal banking regulatory
agency requesting or requiring removal of Officer or a finding by any such
agency that Officer's performance threatens the safety or soundness of
Umpqua or any of its subsidiaries; or
(e) A material breach of Officer's fiduciary duties to Umpqua if
such breach has not been remedied or is not being remedied to the Board's
reasonable satisfaction within thirty (30) days after written notice,
including a detailed description of the breach, has been delivered by the
Board to Officer.
7.2 Good Reason. For purposes of this Agreement, "Good Reason" for
Officer's resignation of employment will exist upon the occurrence of one or
more of the following events, without Officer's consent, if Officer has informed
Umpqua in writing of the circumstances described below in this Section that
could give rise to resignation for Good Reason and Umpqua has not removed the
circumstances within thirty (30) days of the written notice:
(a) A material reduction of Officer's Base Salary, unless the
reduction is in connection with, and commensurate with, reductions in the
salaries of all or substantially all senior officers of Umpqua;
(b) A requirement for Officer to relocate to a facility or
location more than 50 miles from the location where Officer is currently
employed; or
(c) A material adverse change in the Officer's title or line
of reporting.
7.3 Disability. For purposes of this Agreement, "Disability" shall
mean that (i) Officer has been unable to perform Officer's duties under this
Agreement as a result of Officer's incapacity due to physical or mental illness
for at least 90 consecutive calendar days or 150 calendar days during any
consecutive 12 month period and (ii) a physician selected by Umpqua and its
insurers and acceptable to Officer or Officer's legal representative (with such
agreement on acceptability of the physician not to be unreasonably withheld),
determines the incapacity to be (a) total and permanent and (b) prohibiting of
Officer's ability to perform the essential functions of Officer's position with
or without reasonable accommodation.
7.4 Change in Control. For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred when any of the following events take
place:
(a) Any person (including any individual or entity), or
persons acting in concert, become(s) the beneficial owner of voting shares
representing fifty percent (50%) or more of Umpqua;
(b) A majority of the Board is removed from office by a vote
of the Umpqua's shareholders over the recommendation of the Board then serving;
or
(c) Umpqua is a party to a plan of merger or plan of exchange
and upon consummation of such plan, the shareholders of Umpqua immediately prior
to the transaction do not own or continue to own (i) at least forty percent
(40%) of the shares of the surviving company (if the then current CEO of Umpqua
continues as CEO of the surviving organization), or (ii) at least a majority of
the shares of the surviving organization (if the then current CEO of Umpqua does
not continue as CEO of the surviving organization).
8. PAYMENT UPON TERMINATION. Upon termination of Officer's employment for any of
the reasons set forth in Section 6 above, Officer will receive payment for all
Base Salary and benefits accrued as of the date of Officer's termination
("Earned Compensation"), which shall be paid by the end of the business day
following termination or sooner if required by applicable law.
9. SEVERANCE XXXXXXX.Xx the event of Termination Without Cause or Termination
for Good Reason, in addition to receiving Earned Compensation, Officer will
receive a severance benefit equal to the greater of (i) nine (9) months Base
Salary, based on Officer's Base Salary just prior to termination or (ii) two
weeks for every year of employment with Umpqua (the "Severance Benefit"). The
Severance Benefit shall be paid in equal installments over the number of months
of continued Base Salary, starting on the next regular payday following
termination. Receipt of the Severance Benefit is conditioned on Officer having
executed the Separation Agreement in substantially the form attached hereto as
Exhibit A and the revocation period having expired without Officer having
revoked the Separation Agreement. Receipt and continued receipt of the Severance
Benefit is further conditioned on Officer not being in violation of any material
term of this Agreement or in violation of any material term of the Separation
Agreement. Officer shall not be required to mitigate the amount of any payments
under this Section (whether by seeking new employment or otherwise) and no such
payment shall be reduced by earnings that Officer may receive from any other
source.
10. CHANGE IN CONTROL BENEFIT
10.1 Post Change in Control Termination. After a Change in Control
and for a period continuing for one year following a Change in Control, in the
event of Termination Without Cause, Termination For Good Reason, or Resignation
within 30 days after reassignment to a position that is not substantially
equivalent, instead of receiving the Severance Benefit set forth in Section 9
above, Officer shall receive 24 months Base Salary, based on Officer's Base
Salary just prior to the termination of employment, as well as 200% of the
incentive compensation Officer received for the previous year (the
aforementioned Base Salary and incentive are collectively referred to as the
"Change in Control Benefit"). The Change in Control Benefit shall be paid in
equal installments over 24 months, starting on the next regular payday following
termination. Receipt of the Change in Control Benefit is conditioned on Officer
having executed the Separation Agreement in substantially the form attached
hereto as Exhibit A and the revocation period having expired without Officer
having revoked the Separation Agreement. Receipt and continued receipt of the
Change in Control Benefit is further conditioned on Officer not being in
violation of any material term of this Agreement or in violation of any material
term of the Separation Agreement. Officer shall not be required to mitigate the
amount of any payments under this Section (whether by seeking new employment or
otherwise) and no such payment shall be reduced by earnings that Officer may
receive from any other source.
10.2 Pre-Change in Control Termination. In the event Officer's
employment is terminated within six (6) months prior to an announcement of a
definitive agreement that ultimately results in a Change in Control, provided
Officer was entitled to receive the Severance Benefit under Section 9, in
addition to the Severance Benefit, Officer will receive an additional 15 months
Base Salary and 200% of the incentive compensation Officer received for the
previous year (the "Supplemental Change in Control Benefit"). The Supplemental
Change in Control Benefit will be paid in equal installments over 15 months,
starting the later of the next pay period following the last payment of the
Severance Benefit or the next pay period following the Change in Control.
Receipt and continued receipt of the Supplemental Change in Control Benefit is
further conditioned on Officer not being in violation of any material term of
this Agreement or in violation of any material term of the Separation Agreement.
11. CHANGE IN CONTROL RETENTION INCENTIVE. If Officer remains employed for 12
months
following a Change in Control, Officer will receive 12 months Base Salary and
100% of the incentive compensation Officer received for the previous year (the
aforementioned Base Salary and incentive are collectively referred to as the
"Retention Incentive"). The Retention Incentive shall be paid in equal
installments over 12 months, starting on the next regular payday following the
first anniversary of the Change in Control. Receipt of the Retention Incentive
is conditioned on Officer not being in violation of any material term of this
Agreement. If Officer receives a benefit under this Section 11, such benefit
shall cease when Officer begins to receive any benefit under Section 10.
12. LIMITATION ON BENEFITS. 12.1 IRC 280G Adjustment. If the benefit payments
under this Agreement, either alone or together with other payments to which the
Officer is entitled to receive from Umpqua, would constitute an "excess
parachute payment" as defined in Section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), such benefit payments shall be reduced to the
largest amount that will result in no portion of benefit payments under this
Agreement being subject to the excise tax imposed by Section 4999 of the Code.
The determination of any reduction in the benefit payments pursuant to the
foregoing provisions, shall be made by mutual agreement of Umpqua and Officer or
if no agreement is possible, by Umpqua's accountants.
12.2 Limitation on Severance or Change in Control Benefit.
Notwithstanding any other provision in this Agreement, Umpqua shall make no
payment of any benefit provided for herein to the extent that such payment would
be prohibited by the provisions of Part 359 of the regulations of the Federal
Deposit Insurance Corporation (the "FDIC") as the same may be amended from time
to time, and if such payment is so prohibited, Umpqua shall use its best efforts
to secure the consent of the FDIC or other applicable banking agencies to make
such payments in the highest amount permissible, up to the amount provided for
in this Agreement.
13. EXECUTIVE SEVERANCE PLAN
13.1 In General. Those provisions of this Agreement (including this
Section) related to the Severance Benefit set forth in Section 9 and Change in
Control Benefit set forth in Section 10 constitute part of the terms of the
Umpqua Holdings Corporation Executive Severance Plan (the "Executive Severance
Plan") with respect to the Officer, and such terms and the general terms of the
Executive Severance Plan established by Umpqua shall comprise the entirety of
the Executive Severance Plan as it applies to the Officer. Umpqua intends for
the Plan to be considered a welfare benefit plan within the meaning of Section
3(1) of the Employee Retirement Income Security Act ("ERISA"), and a plan which
is unfunded and maintained by the Umpqua solely for the purpose of providing
benefits for a select group of management or highly compensated employees within
the meaning of ERISA Regulation Section 2520.104-24. A copy of the Executive
Severance Plan will be furnished to the Officer upon request.
13.2 Administration of Executive Severance Plan. Umpqua's Chief
Executive Officer and Human Resources Director are each plan administrators (the
"Plan Administrator") of the Executive Severance Plan and the Plan Administrator
shall have the discretionary authority to administer and construe the terms of
the Executive Severance Plan, including the authority to decide if Officer is
entitled to the Severance Benefit or Change in Control Benefit and the authority
to determine if there is Termination For Cause or Termination For Good Reason.
13.3 Claims Procedures. The Officer may file a claim for a payment
under the Executive Severance Plan by filing a written request for such a
payment with the Plan Administrator. If the Plan Administrator prescribes a form
for such a claim, the claim must be filed on such form. The claim should be sent
to the attention of the Plan Administrator of the Executive Severance Plan at
the address set forth for Umpqua in Section 20.
If the Plan Administrator denies the claim, in whole or in part, the
Plan Administrator shall notify the Officer within 90 days of the Plan
Administrator's receipt of the claim, unless the Plan Administrator determines
that special circumstances require an extension of time for processing the
claim. If the Plan Administrator determines that an extension of time is
required, written notice of the extension shall be furnished to Officer prior to
the termination of the initial 90-day period. Such extension notice shall
indicate the special circumstances and the date by which the Plan Administrator
expects to issue a determination with respect to the claim. The period of the
extension will not exceed 90 days beyond the termination of the original 90-day
period. If the Plan Administrator does not provide written notice, Officer may
deem the claim denied and seek review according to the appeals
procedures set forth below.
The notice of denial of Officer's claim shall state:
a. the specific reasons for the denial;
b. specific references to pertinent provisions of the Executive
Severance Plan on which the denial was based;
c. a description of any additional material or information needed
for Officer to perfect his or her claim and an explanation of why
the material or information is needed; and
d. a statement (1) that Officer may request a review upon written
application to the Plan Administrator, review or receive (free of
charge) pertinent Plan documents and records, and submit issues and
comments in writing, (2) that any appeal that Officer wishes to make
of the adverse determination must be in writing to the Plan
Administrator within sixty (60) days after the Officer receives
notice of denial of benefits, and (3) that Officer may bring a civil
action under ERISA Section 502(a) following an adverse benefit
determination upon review.
The notice of denial of benefits shall specify that Officer must forward
any appeal to the Plan Administrator at the address provided in such notice. The
notice may state that failure to appeal the action to the Plan Administrator in
writing within the sixty (60) day period will render the determination final,
binding and conclusive.
If Officer appeals to the Plan Administrator, Officer may submit in
writing whatever issues and comments he or she believes to be pertinent. The
Plan Administrator shall reexamine all facts related to the appeal and make a
final determination about whether the denial of benefits is justified under the
circumstances. The Plan Administrator shall advise Officer in writing of:
a. its decision on appeal;
b. the specific reasons for the decision;
c. the specific provisions of the Plan on which the decision is
based; and
d. Officer's right to receive, upon request and free of charge,
reasonable access to, and copies of, all relevant documents and records.
Notice of the Plan Administrator's decision shall be given within sixty
(60) days of Officer's written request for review, unless additional time is
required due to special circumstances. In no event shall the Plan Administrator
render a decision on an appeal later than one hundred twenty (120) days after
receiving a request for a review. If the Plan Administrator fails to provide a
decision with respect to Officer's appeal within the 60 (or, if applicable, 120)
day period Officer may deem his or her appeal denied and may pursue the
arbitration remedy set forth below.
In the event that Officer fails to pursue his or her administrative
remedies as set forth above within the specified periods, he shall have no
further right to the benefits subject to his or her claim and agrees by
executing this Agreement that he or she shall have no right to pursue such claim
in arbitration or in a court of law.
For purposes of this Claims Procedure under the Executive Severance Plan,
Officer may act through a representative authorized in writing to act on his
behalf, provided that such authorization is furnished to the Plan Administrator.
In the event that Umpqua denies the Officer's appeal of the denial of his
or her claim, in whole or in part, Umpqua and Officer's may agree to submit the
Plan Administrator's decision to binding arbitration in lieu of Officer's right
to pursue his claim in any court of law.
14. NONCOMPETITION. This provision does not apply to California residents.
15. NON-SOLICITATION.For a period of two (2) years following termination of
employment (the "Restriction Period"), Officer shall not solicit any customer of
Umpqua or of any of its subsidiaries for services or products then provided by
Umpqua or any of its subsidiaries. For purposes of this Section, "customers" are
defined as (a) all customers serviced by Umpqua or any of Umpqua's subsidiaries
at any time within 12 months before termination of Officer's employment, (b) all
customers and potential customers whom Umpqua or any of Umpqua's subsidiaries,
with the knowledge or participation of Officer, actively solicited at any time
within 12 months before termination of Officer's employment, and (c) all
successors, owners, directors, partners and management personnel of the
customers just described in (a) and (b).
16. NONRAIDING OF EMPLOYEES. Officer recognizes that Umpqua's workforce is a
vital part of its business; therefore, Officer agrees that for the Restriction
Period, Officer will not to directly or indirectly solicit any employee to leave
his or her employment with Umpqua or any of Umpqua's subsidiaries. This includes
that Officer will not (a) disclose to any third party the names, backgrounds or
qualifications of any Umpqua or any of Umpqua subsidiary's employees as
potential candidates for employment, or (b) personally or through any other
person approach, recruit, interview or otherwise solicit employees of Umpqua or
any of Umpqua's subsidiaries to work for any other employer. For purposes of
this Section, employees include all employees working for Umpqua or any of
Umpqua's subsidiaries at the time of termination of Officer's employment.
17. CONFIDENTIAL INFORMATION. The parties acknowledge that in the course of
Officer's duties, Officer will have access to and become familiar with certain
proprietary and confidential information of Umpqua and its subsidiaries not
known by its actual or potential competitors. Officer acknowledges that such
information constitutes valuable, special, and unique assets of Umpqua's
business, even though such information may not be of a technical nature and may
not be protected under trade secret or related laws. Officer agrees to hold in a
fiduciary capacity and not use for Officer's benefit, nor reveal, communicate,
or divulge during the period of Officer's employment with Umpqua or at any time
thereafter, and in any manner whatsoever, any such data and confidential
information of any kind, nature, or description concerning any matters affecting
or relating to Umpqua's business, its customers, or its services, including
information developed by Officer, alone or with others, or entrusted to Umpqua
by its customers or others, to any person, firm, entity, or company other than
Umpqua or persons, firms, entities, or companies designated by Umpqua. Officer
agrees that all memoranda, notes, records, papers, customer files, and other
documents, and all copies thereof relating to Umpqua's operations or business,
or matters related to any of Umpqua's customers, some of which may be prepared
by Officer, and all objects associated therewith in any way obtained by Officer,
shall be Umpqua's property ("Umpqua Property"). Upon termination or at Umpqua's
request, Officer shall promptly return all the Umpqua Property to Umpqua.
18. REASONABLENESS OF RESTRICTION PERIOD; EQUITABLE RELIEF. Officer acknowledges
and agrees that the restrictive covenants in Sections 15, 16, and 17 are fair
and reasonable and are the result of negotiation between Umpqua and Officer (and
Officer's counsel, if Officer has sought the benefit of counsel). Officer
further acknowledges and agrees that the covenants and obligations in this
Agreement relate to special, unique, and extraordinary matters and that a
violation of any of the terms of the covenants and obligations will cause
irreparable injury to Umpqua, for which adequate remedies are not available at
law. Therefore, Officer agrees that Umpqua shall be entitled to an injunction,
restraining order, or such other equitable relief as a court of competent
jurisdiction may deem necessary or appropriate to restrain the Officer from
committing any violation of the covenants and obligations set forth in Sections
15, 16 and 17 of this Agreement. These injunctive remedies are cumulative and
are in addition to any other rights and remedies Umpqua may have at law or in
equity. If Umpqua institutes an action to enforce the provisions hereof, Officer
hereby waives the claim or defense that an adequate remedy at law is available,
and Officer agrees not to urge in any such action the claim or defense that an
adequate remedy at law exists.
19. DISPUTE RESOLUTION
19.1 Arbitration. Except where such matters are deemed governed by
ERISA and are the subject to Section 13 above, the parties agree to submit any
dispute arising under this Agreement to final, binding, private arbitration in
Portland, Oregon. The disputes subject to arbitration include not only disputes
involving the meaning or performance of the Agreement, but disputes about its
negotiation, drafting, or execution. The dispute will be determined by a single
arbitrator and governed by then-existing rules of arbitration procedure in
Multnomah County Circuit Court except as set forth herein. Instead of filing of
a civil complaint in Multnomah County Circuit Court, a party will commence the
arbitration process by noticing the other party. The parties will choose an
arbitrator who specializes in employment conflicts from the arbitration list for
Multnomah County Circuit Court. If the parties are unable to agree on an
arbitrator within ten (10) days of receipt of the list of arbitrators, each
party will select one attorney from the list, and those two attorneys shall
select the arbitrator from the list (with each of the two selecting attorneys
then concluding their services and each being compensated by the party selecting
each attorney, subject to recovery of such fees under Section 19.2). The
arbitrator may charge his or her standard arbitration fees rather than the fees
prescribed in the Multnomah County Circuit Court arbitration procedures. The
arbitrator will have full authority to determine all issues, including
arbitrability, to award any remedy, including permanent injunctive relief, and
to determine any request for attorneys' fees, costs and expenses in accordance
with Section 19.2. There shall be no right of review in court. The arbitrator's
award may be reduced to final judgment or decree in Multnomah County Circuit
Court.
19.2 Expenses/Attorneys' Fees. The prevailing party shall be awarded
all costs and expenses of the proceeding, including, but not limited to,
attorneys' fees, filing and service fees, witness fees, and arbitrators' fees.
If arbitration is commenced, the arbitrator will have full authority and
complete discretion to determine the "prevailing party" and the amount of costs
and expenses to be awarded.
19.3 Injunctive Relief. Notwithstanding any other provision of this
Agreement, an aggrieved party may seek a temporary restraining order or
preliminary injunction in Multnomah County Circuit Court to preserve the status
quo during the arbitration proceeding, provided however, that the party seeking
relief agrees that ultimate resolution of the dispute will still be determined
through arbitration and not through court process. The filing of the court
action for injunctive relief shall not hinder or delay the arbitration process.
20. NOTICES. All notices, requests, demands, and other communications provided
for by this Agreement will be in writing and shall be deemed sufficient upon
receipt, when delivered personally or by a nationally-recognized delivery
service (such as Federal Express), or three (3) business days after being
deposited in the U.S. mail as certified mail, return receipt requested, with
postage prepaid, if such notice is properly addressed. Unless otherwise changed
in writing, notice shall be properly addressed to Officer if addressed to the
address of Officer on Umpqua's books and records at the time of mailing of such
notice, and properly addressed to Umpqua if addressed to Umpqua Holdings
Corporation, Xxx XX Xxxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000, Attention:
Chief Executive Officer.
21. BENEFICIARIES
21.1 Beneficiary Designations. The Officer shall designate a
beneficiary by filing a written designation with Umpqua. The Officer may revoke
or modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Officer and received by
Umpqua during the Officer's lifetime. The Officer's beneficiary designation
shall be deemed automatically revoked if the beneficiary predeceases the Officer
or if the Officer names a spouse as beneficiary and the marriage is subsequently
dissolved. If the Officer dies without a valid beneficiary designation, all
payments shall be made to the Officer's estate.
21.2 Facility of Payment. If a benefit is payable to a minor, to a
person declared incompetent, or to a person incapable of handling the
disposition of his or her property, Umpqua may pay such benefit to the guardian,
legal representative or person having the care or custody of such minor,
incompetent person or incapable person. Umpqua may require proof of
incompetence, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge Umpqua
from all liability with respect to such benefit.
22. GENERAL PROVISIONS
22.1 Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by federal ERISA, as it relates
to the Severance Benefit and Change in Control Benefit as discussed in Section
13 above, and otherwise by the laws of the State of Oregon.
22.2 Saving Provision. If any part of this Agreement is held to be
unenforceable, it shall not affect any other part. If any part of this Agreement
is held to be unenforceable as written, it shall be enforced to the maximum
extent allowed by applicable law.
22.3 Survival Provision. If any benefits provided in Sections 9, 10,
or 11 of this Agreement are still owed, or claims pursuant to Section 13 are
still pending, at the time of termination of this Agreement, this Agreement
shall continue in force, with respect to those obligations or claims, until such
benefits are paid in full or claims are resolved in full. The nonsolicitation,
non-raiding, confidential information, and dispute resolution provisions of this
Agreement shall survive after termination of this Agreement, and shall be
enforceable regardless of any claim Officer may have against Umpqua.
22.4 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
22.5 Entire Agreement. This Agreement constitutes the sole agreement
of the parties regarding Officer's benefits in the event of termination or
Change in Control and together with Umpqua's employee handbook governs the terms
of Officer's employment. Where there is a conflict between the employee handbook
and this Agreement, the terms of this Agreement shall govern.
22.6 Previous Agreements. This Agreement supersedes all prior oral
and written agreements between the Officer and Umpqua, or any affiliates or
representatives of Umpqua regarding the subject matters set forth herein.
22.7 Waiver/Amendment. No waiver of any provision of this Agreement
shall be valid unless in writing, signed by the party against whom the waiver is
sought to be enforced. The waiver of any breach of this Agreement or failure to
enforce any provision of this Agreement shall not waive any later breach. This
Agreement may only be amended by a writing signed by the parties.
22.8 Assignment. Officer shall not assign or transfer any of
Officer's rights pursuant to this Agreement, wholly or partially, to any other
person or to delegate the performance of its duties under the terms of this
Agreement. The rights and obligations of Umpqua under this Agreement shall inure
to the benefit of and be binding in each and every respect upon the direct and
indirect successors and assigns of Umpqua, regardless of the manner in which the
successors or assigns succeed to the interests or assets of Umpqua. This
Agreement shall not be terminated by the voluntary or involuntary dissolution of
Umpqua, by any merger, consolidation or acquisition where Umpqua is not the
surviving corporation, by any transfer of all or substantially all of Umpqua's
assets, or by any other change in Umpqua's structure or the manner in which
Umpqua's business or assets are held. Officer's employment shall not be deemed
terminated upon the occurrence of one of the foregoing events. In the event of
any merger, consolidation or transfer of assets, this Agreement shall be binding
upon and shall inure to the benefit of the surviving corporation or the
corporation to which the assets are transferred.
23. ADVICE OF COUNSEL. OFFICER ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, OFFICER HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT
LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF
THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY
REASON OF THE DRAFTING OR PREPARATION HEREOF.
UMPQUA HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Chief Executive Officer
OFFICER
/s/ Xxxxxxx Xxxx
---------------------------
Xxxxxxx Xxxx
EXHIBIT A
EMPLOYMENT SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This is a confidential agreement (this "Separation Agreement") between
you, Xxxxxxx Xxxx, and us, Umpqua Holdings Corporation. This Separation
Agreement is dated for reference purposes _____________, 20___, which is the
date we delivered this Separation Agreement to you for your consideration. For
purposes of this Separation Agreement Umpqua Holdings Corporation together with
each of its subsidiaries or affiliates is referred to as "Umpqua."
1. TERMINATION OF EMPLOYMENT. Your employment terminates [or was
terminated] on _______________, 20___ (the "Separation Date").
2. PAYMENTS. In exchange for your agreeing to the release of claims and
other terms in this Separation Agreement, we will pay you the Severance Benefit
specified in Section 9 or the Change in Control Benefit in Section 10, as
appropriate, of the Agreement between you and Umpqua dated May 12, 2005 (the
"Employment Agreement") on the dates provided therein (or on such other date or
dates as may be mutually agreed upon by you and Umpqua or our successor). Such
provisions of the Employment Agreement are incorporated herein by reference. You
acknowledge that we are not obligated to make these payments to you unless you
comply with the material terms of the Employment Agreement and of this
Separation Agreement.
3. COBRA CONTINUATION COVERAGE. Your normal employee participation in
Umpqua's group health coverage will terminate on the Separation Date.
Continuation of group health coverage thereafter will be made available to you
and your dependents pursuant to federal law (COBRA). Continuation of group
health coverage after the Separation Date is entirely at your expense, as
provided under COBRA.
4. TERMINATION OF BENEFITS. Except as provided in Section 3 above, your
participation in all employee benefit plans and programs ended on the Separation
Date. Your rights under any pension benefit or other plans in which you may have
participated will be determined in accordance with the written plan documents
governing those plans.
5. FULL PAYMENT. You acknowledge having received full payment of all
compensation of any kind (including wages, salary, vacation, sick leave,
commissions, bonuses and incentive compensation) that you earned as a result of
your employment by us.
6. NO FURTHER COMPENSATION. Any and all agreements to pay you bonuses or
other incentive compensation are terminated. You understand and agree that you
have no right to receive any further payments for bonuses or other incentive
compensation. We owe no further compensation or benefits of any kind, except as
described in Section 2 above.
7. RELEASE OF CLAIMS.
(a) You hereby release (i) Umpqua and its subsidiaries, affiliates, and
benefit plans, (ii) each of Umpqua's past and present shareholders, officers,
directors, agents, employees, representatives, administrators, fiduciaries and
attorneys, and (iii) the predecessors, successors, transferees and assigns of
each of the persons and entities described in this sentence, from any and all
claims of any kind, known or unknown, that arose on or before the date you
signed this Separation Agreement.
(b) The claims you are releasing include, without limitation, claims of
wrongful termination, claims of constructive discharge, claims arising out of
employment agreements, representations or policies related to your employment,
claims arising under federal, state or local laws or ordinances prohibiting
discrimination or harassment or requiring accommodation on the basis of age,
race, color, national origin, religion, sex, disability, marital status, sexual
orientation or any other status, claims of failure to accommodate a disability
or religious practice, claims for violation of public policy, claims of
retaliation, claims of failure to assist you in applying for future position
openings, claims of failure to hire you for future position openings, claims for
wages or compensation of any kind (including overtime claims), claims of
tortious interference with contract or expectancy, claims of fraud or negligent
misrepresentation,
claims of breach of privacy, defamation claims, claims of intentional or
negligent infliction of emotional distress, claims of unfair labor practices,
claims arising out of any claimed right to stock or stock options, claims for
attorneys' fees or costs, and any other claims that are based on any legal
obligations that arise out of or are related to your employment relationship
with us.
(c) You specifically waive any rights or claims that you may have under
the California Labor Code, the Civil Rights Act of 1964 (including Title VII of
that Act), the Equal Pay Act of 1963, the Age Discrimination in Employment Act
of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), the Fair
Labor Standards Act of 1938 (FLSA), the Family and Medical Leave Act of 1993
(FMLA), the Worker Adjustment and Retraining Notification Act (WARN), the
Employee Retirement Income Security Act of 1974 (ERISA), the National Labor
Relations Act (NLRA), and all similar federal, state and local laws.
(d) You agree not to seek any personal recovery (of money damages,
injunctive relief or otherwise) for the claims you are releasing in this
Separation Agreement, either through any complaint to any governmental agency or
otherwise. You agree never to start any lawsuit or arbitration asserting any of
the claims you are releasing in this Separation Agreement. You represent and
warrant that you have not initiated any complaint, charge, lawsuit or
arbitration involving any of the claims you are releasing in this Separation
Agreement. Should you apply for future employment with Umpqua, Umpqua has no
obligation to consider you for future employment.
(e) You represent and warrant that you have all necessary authority to
enter into this Separation Agreement (including, if you are married, on behalf
of your marital community) and that you have not transferred any interest in any
claims to your spouse or to any third party.
(f) This Separation Agreement does not affect your rights, if any, to
receive pension plan benefits, medical plan benefits, unemployment compensation
benefits or workers' compensation benefits. This Separation Agreement also does
not affect your rights, if any, under agreements, bylaw provisions, insurance or
otherwise, to be indemnified, defended or held harmless in connection with
claims that may be asserted against you by third parties.
(g) You understand that you are releasing potentially unknown claims, and
that you have limited knowledge with respect to some of the claims being
released. You acknowledge that there is a risk that, after signing this
Separation Agreement, you may learn information that might have affected your
decision to enter into this Separation Agreement. You assume this risk and all
other risks of any mistake in entering into this Separation Agreement. You agree
that this release is fairly and knowingly made.
(h) You are giving up all rights and claims of any kind, known or unknown,
except for the rights specifically given to you in this Separation Agreement.
8. NO ADMISSION OF LIABILITY. Neither this Separation Agreement nor the
payments made under this Separation Agreement are an admission of liability or
wrongdoing by Umpqua.
9. UMPQUA MATERIALS. You represent and warrant that you have, or no later
than the Separation Date will have, returned all keys, credit cards, documents
and other materials that belong to us, including but not limited to the Umpqua
Property, as defined in Section 17 of the Employment Agreement, which definition
is incorporated herein by reference.
10. NONDISCLOSURE AGREEMENT. You will comply with the covenant regarding
confidential information in Section 17 of the Employment Agreement, which
covenant is incorporated herein by reference.
11. NO DISPARAGEMENT. You may not disparage Umpqua or Umpqua's business or
products, and may not encourage any third parties to xxx Umpqua.
12. COOPERATION REGARDING OTHER CLAIMS. If any claim is asserted by or
against Umpqua as to which you have relevant knowledge, you will reasonably
cooperate with us in the prosecution or defense of that claim, including by
providing truthful information and testimony as reasonably requested by us.
13. NONSOLICITATION; NO INTERFERENCE. During the Restriction Period, as
defined in Section 15 of the
Employment Agreement, you will comply with Sections 15 and 16 of the Employment
Agreement, incorporated herein by reference and Umpqua will have the right to
enforce those provisions under the terms of Section 18 of the Employment
Agreement, incorporated herein by reference. After the Restriction Period, you
will not, apart from good faith competition, interfere with Umpqua's
relationships with customers, employees, vendors, or others.
14. INDEPENDENT LEGAL COUNSEL. You are advised and encouraged to consult
with an attorney before signing this Separation Agreement. You acknowledge that
you have had an adequate opportunity to do so.
15. CONSIDERATION PERIOD. You have 21 days from the date this Separation
Agreement is given to you to consider this Separation Agreement before signing
it. You may use as much or as little of this 21-day period as you wish before
signing. If you do not sign and return this Separation Agreement within this
21-day period, you will not be eligible to receive the benefits described in
this Separation Agreement.
16. REVOCATION PERIOD AND EFFECTIVE DATE. You have 7 calendar days after
signing this Separation Agreement to revoke it. To revoke this Separation
Agreement after signing it, you must deliver a written notice of revocation to
Umpqua's Chief Executive Officer before the 7-day period expires. This
Separation Agreement shall not become effective until the 8th calendar day after
you sign it. If you revoke this Separation Agreement it will not become
effective or enforceable and you will not be entitled to the benefits described
in this Separation Agreement.
17. GOVERNING LAW. This Separation Agreement is governed by the laws of
the State of Oregon that apply to contracts executed and to be performed
entirely within the State of Oregon.
18. DISPUTE RESOLUTION.
(a) Except where such matters are deemed governed by ERISA or are
the subject to Section 7 above, the parties agree to submit any dispute arising
under this Separation Agreement to final, binding, private arbitration in
Portland, Oregon. The disputes subject to arbitration include not only disputes
involving the meaning or performance of the Separation Agreement, but disputes
about its negotiation, drafting, or execution. The dispute will be determined by
a single arbitrator and governed by the then-existing rules of arbitration
procedure in Multnomah County Circuit Court except as set forth herein. Instead
of filing of a civil complaint in Multnomah County Circuit Court, a party will
commence the arbitration process by noticing the other party. The parties will
choose an arbitrator who specializes in employment conflicts from the
arbitration list for Multnomah County Circuit Court. If the parties are unable
to agree on an arbitrator within ten (10) days of receipt of the list of
arbitrators, each party will select one attorney from the list, and those two
attorneys shall select the arbitrator from the list (with each of the two
selecting attorneys then concluding their services and each being compensated by
the party selecting each attorney, subject to recovery of such fees under
subsection (b) of this Section). The arbitrator may charge his or her standard
arbitration fees rather than the fees prescribed in the Multnomah County Circuit
Court arbitration procedures. The arbitrator will have full authority to
determine all issues, including arbitrability, to award any remedy, including
permanent injunctive relief, and to determine any request for attorneys' fees,
costs and expenses in accordance with subsection (b) of this Section. There
shall be no right of review in court. The arbitrator's award may be reduced to
final judgment or decree in Multnomah County Circuit Court.
(b) The prevailing party shall be awarded all costs and expenses of
the proceeding, including, but not limited to, attorneys' fees, filing and
service fees, witness fees, and arbitrators' fees. If arbitration is commenced,
the arbitrator will have full authority and complete discretion to determine the
"prevailing party" and the amount of costs and expenses to be awarded.
(c) Notwithstanding any other provision of this Separation
Agreement, an aggrieved party may seek a temporary restraining order or
preliminary injunction in Multnomah County Circuit Court to preserve the status
quo during the arbitration proceeding, provided however, that the party seeking
relief agrees that ultimate resolution of the dispute will still be determined
through arbitration and not through court process. The filing of the court
action for injunctive relief shall not hinder or delay the arbitration process.
19. SAVING PROVISION. If any part of this Separation Agreement is held to
be unenforceable, it shall not affect any other part. If any part of this
Separation Agreement is held to be unenforceable as written, it shall be
enforced to the maximum extent allowed by applicable law.
20. FINAL AND COMPLETE AGREEMENT. Except for the Employment Agreement to
the extent it is expressly incorporated herein by reference, this Separation
Agreement is the final and complete expression of all agreements between us on
all subjects and supersedes and replaces all prior discussions, representations,
agreements, policies and practices. You acknowledge you are not signing this
Separation Agreement relying on anything not set out herein.
UMPQUA HOLDINGS CORPORATION
By: ____________________________________
Title: _________________________________
I, THE UNDERSIGNED, HAVING BEEN ADVISED TO CONSULT WITH AN ATTORNEY, HEREBY
AGREE TO BE BOUND BY THIS SEPARATION AGREEMENT AND CONFIRM THAT I HAVE READ AND
UNDERSTOOD EACH PART OF IT.
_________________________________________
Xxxxxxx Xxxx
_________________________________________
Date
BENEFICIARY DESIGNATION
FOR
UMPQUA HOLDINGS CORPORATION
EMPLOYMENT AGREEMENT
I designate the following as beneficiary of any payment or other benefits under
my Employment Agreement payable following my death:
Primary: ____________________________________________________________
Contingent:
____________________________________________________________
NOTE: TO NAME A TRUST AS BENEFICIARY, PLEASE PROVIDE THE NAME OF THE TRUSTEE(S)
AND THE EXACT NAME AND DATE OF THE TRUST AGREEMENT.
I understand that I may change these beneficiary designations by filing a
new written designation with Umpqua. I further understand that the
designations will be automatically revoked if the beneficiary predeceases
me, or, if I have named my spouse as beneficiary and our marriage is
subsequently dissolved.
Signature: __________________________
___________________________
Date: _____________________________
Received by Umpqua this _________ day of ___________________, ______________.
By: _______________________________
Name: _____________________________
Title: ____________________________
